Harris v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Elder and Overton
Argued at Richmond, Virginia

LAMONT ERNEST HARRIS
OPINION BY
v. Record No. 3071-96-2 JUDGE LARRY G. ELDER
MARCH 24, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Donald W. Lemons, Judge
Steven D. Benjamin (Betty Layne DesPortes;
Benjamin & DesPortes, P.C., on briefs), for
appellant.

Richard B. Smith, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.

Lamont Ernest Harris ("appellant") appeals the sentence

imposed by the trial court following his guilty plea to the

charge of possessing heroin with intent to distribute. He

contends the trial court violated the Due Process Clause of the

Fourteenth Amendment when it admitted the following evidence

during a hearing to determine his sentence: (1) information

contained in a presentence report regarding his prior adult

criminal convictions to which his Sixth Amendment right to

counsel had attached, (2) information contained in a presentence

report regarding his entire juvenile record, and (3) a proffer by

the Commonwealth's attorney regarding the evidence presented at a

trial of appellant on an unrelated murder charge that resulted in

a hung jury. For the reasons that follow, we affirm.
 I.

FACTS

On October 10, 1996, appellant pleaded guilty to the charge

that he possessed heroin with the intent to distribute "on or

about January 5, 1996." After accepting appellant's guilty plea,

the trial court scheduled a hearing to sentence appellant for

this offense ("heroin offense") and ordered the preparation of a

presentence report.
On November 12, 1996, the trial court held a hearing to

first sentence appellant for the heroin offense and then to

receive appellant's guilty plea to an unrelated charge of

murder. 1 At the beginning of the hearing to determine

appellant's sentence for the heroin offense, the following

exchange occurred regarding the relevance of the murder charge:
TRIAL COURT: Counsel, do I understand that
we have both a sentencing on one charge and a
plea on another, is that correct?

APPELLANT'S COUNSEL: Yes, sir. The
sentencing to occur before we take up this
other matter.

COMMONWEALTH'S ATTORNEY: Judge, although the
sentencing is going to occur in time first,
we believe we can stipulate and agree that
the plea agreement is going to be, we're
1
Appellant was charged with murdering Thomas Lee Smithers
("victim") on October 8, 1995 ("murder charge"). A trial of
appellant on the murder charge ended in a hung jury. Appellant
and the Commonwealth subsequently negotiated a plea agreement,
pursuant to which appellant agreed to enter a guilty plea to the
murder charge on the condition that he receive a suspended
sentence. The parties agreed that appellant would be sentenced
for the heroin offense before pleading guilty to the murder
charge.

2
 going to recommend imposition of sentence
suspended on first degree murder upon the
plea of guilty.

APPELLANT'S COUNSEL: Let me tell you
additionally what that representation is all
about. At the time that we agreed to the
dispositions on today's cases, it was agreed
that no conviction, no plea on the homicide
would occur until after these pending charges
had been disposed of. It was also agreed,
however, that during the course of the
sentencing, the Commonwealth could make known
to you the anticipated plea and the plea
agreement, but I think that we both agree
that that conviction has not occurred and
both of us, I think, would be free to address
those matters during our comments.
TRIAL COURT: Including summary of the
evidence on that matter?

APPELLANT'S COUNSEL: I think that will come
up.

The Commonwealth stated that the evidence it intended to

offer during the sentencing hearing consisted of "the guidelines,

the presentence report, and the stipulation about what we

anticipate occurring." The presentence report contained a list

of appellant's prior adult criminal convictions and juvenile

adjudications. Included among appellant's prior convictions were

two felonies and one misdemeanor for which appellant was actually

incarcerated. 2 Neither the Commonwealth nor appellant offered

2
The two felonies are listed as "Dist. Heroin w/Intent to
Dist." and "Poss. Heroin w/Intent to Dist." Under the heading
"DMV RECORD," the presentence report stated that appellant had
one conviction of "OALR" for which he was sentenced to "30 days
w/5 days suspd." Although the meaning of "OALR" is unclear, the
jail sentence imposed indicates that this offense is a
misdemeanor.

3
any evidence about whether these convictions were obtained in

compliance with appellant's Sixth Amendment right to counsel.

The presentence report also stated that appellant's juvenile

record included adjudications of "not innocent" for twelve

offenses.

Appellant made two objections to the admissibility of the

presentence report. He first objected to the portion of the

presentence report summarizing his prior adult criminal record.

He argued that admitting the summary of his adult criminal record

violated his right to due process under the Fourteenth Amendment

because the Commonwealth failed to prove that any of these prior

convictions were "counseled" under the Sixth Amendment. The

trial court overruled appellant's objection.
Appellant also objected to the admissibility of the portion

of the presentence report summarizing his juvenile record. He

argued that admitting evidence during the sentencing phase of an

adult criminal proceeding regarding his prior juvenile record was

unconstitutional because the procedures under which the juvenile

proceedings were adjudicated rendered them "unreliable." The

trial court also overruled this objection.

The Commonwealth's attorney subsequently argued that

appellant's long and varied history of committing criminal

offenses justified the imposition of the maximum sentence for the

heroin offense. During his recitation of appellant's history of

criminal convictions and juvenile adjudications, the

4
Commonwealth's attorney referred to the murder charge still

pending against appellant. He stated:
We see that he's also, he's committed
larcenies. He's committed several larcenies,
grand larceny, petty larceny, petty larceny.
He's vandalized property. He's been
convicted of vandalism . . . . And now with
the stipulation that we have, we know that he
has committed a murder and that he is
pleading guilty to a murder. That is a
record that goes across all the different
categories of offenses from sex offense to
murder to drugs to stealing and the entire
gamut. . . .

(Emphasis added).

At the beginning of his argument regarding appellant's

sentence, appellant's counsel objected to the Commonwealth's

attorney's reference to the murder charge. He argued that the

trial court "cannot consider [the murder charge] at all because

there is in fact no conviction [and] . . . no evidence before you

of what occurred." The trial court ruled that references to the

murder charge were "admissible" and that the only remaining

issues "[were] how probative it is and how much should it be

considered by the Court." The trial court then directed

appellant's counsel to present arguments about these two issues.

In response to the trial court's request, appellant's

counsel stated his understanding of the circumstances that led to

the hung jury at the trial on the murder charge and argued that

appellant's forthcoming guilty plea was unreliable and not

probative. The Commonwealth's attorney responded by arguing that

appellant's forthcoming guilty plea to the murder charge was

5
reliable and relevant to the determination of his sentence for

the heroin offense. In support of his argument, the

Commonwealth's attorney proffered a detailed summary of the

evidence presented at the trial of the murder charge, including

his synopsis of all of the key witnesses' testimony. Appellant's

counsel responded with a detailed summary of the evidence that

impeached the credibility of the witnesses who testified at the

trial on the murder charge. He argued that the unreliability of

the Commonwealth's witnesses rendered appellant's forthcoming

guilty plea to the murder charge "of no probative value."
At the conclusion of the arguments, the trial court

sentenced appellant to serve forty years in a state correctional

facility, the maximum sentence of incarceration allowed for a

conviction under Code § 18.2-248, and suspended twenty-five of

these years for the remainder of appellant's life.

After the proceeding on the murder charge, appellant made a

motion to suspend or reduce the sentence imposed by the trial

court for the heroin offense. Appellant argued that the trial

court violated the Fourteenth Amendment when it admitted into

"evidence" the proffer given by the Commonwealth's attorney

regarding the evidence presented at the trial on the murder

charge. Appellant argued that the proffer was constitutionally

inadmissible because "it would be unreliable evidence coming as

it did through various representations instead of [appellant]

confronting that particular witness on the stand." The trial

6
court denied appellant's motion. It explained that it considered

the Commonwealth's attorney's proffer to be "admissible

testimony," and the fact that a trial had already been held on

the murder charge, at which both attorneys were present, rendered

the proffer sufficiently reliable to be considered as "evidence."

II.

ADMISSIBILITY OF PRIOR ADULT CRIMINAL CONVICTIONS

Appellant contends the trial court violated the Due Process

Clause of the Fourteenth Amendment when it admitted evidence

during a sentencing hearing about his prior adult convictions to

which his Sixth Amendment right to counsel had attached. He

argues that prior criminal convictions are presumed to be tainted

by a violation of the defendant's right to counsel and that the

Commonwealth failed to meet its burden of proving that his

convictions were properly "counseled" under the Sixth Amendment.

Because appellant failed to rebut the presumption that his prior

convictions were constitutionally valid, we disagree.
Both a criminal defendant's right to counsel and the

prohibition against using uncounseled prior convictions to

enhance punishment are well established. Under the Sixth

Amendment, a criminal defendant has a right to be represented by

counsel, absent a knowing and intelligent waiver of this right,

in all prosecutions of felonies and of misdemeanors for which the

defendant is actually incarcerated. See Scott v. Illinois, 440

U.S. 367, 373-74, 99 S. Ct. 1158, 1162, 59 L.Ed.2d 383 (1979);

7
Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S. Ct. 2006, 2012, 32

L.Ed.2d 530 (1972); see also Griswold v. Commonwealth, 252 Va.

113, 115, 472 S.E.2d 789, 790 (1996). The right to counsel under

the Sixth Amendment does not extend to prosecutions of

misdemeanors for which no jail time is actually served by the

defendant. See Scott, 440 U.S. at 369, 99 S. Ct. at 1160.

In addition, the Due Process Clause limits the types of

prior convictions that may be used to enhance a convicted

defendant's sentence. See Parke v. Raley, 506 U.S. 20, 27, 113

S. Ct. 517, 522, 121 L.Ed.2d 391 (1992). A prior conviction is

used for "sentence enhancement" when it is admitted (1) during a

trial to convict a defendant of violating a "recidivist statute,"

i.e., a statute that criminalizes the commission of a successive

violation of a particular offense, (2) during a sentencing

hearing as part of the criminal history portion of a calculation

of a sentence pursuant to the sentencing guidelines, or (3)

during a sentencing hearing as part of the defendant's record of

prior criminal convictions. See Nichols v. United States, 511

U.S. 738, 747, 114 S. Ct. 1921, 1927, 128 L.Ed.2d 745 (1994)

(regarding recidivist statutes and sentencing guidelines);

Griswold, 252 Va. at 116, 472 S.E.2d at 789 (regarding prior

criminal record). Among the prior convictions that may not be

admitted for sentence enhancement are those that were

"uncounseled," i.e., obtained in violation of the defendant's

Sixth Amendment right to counsel. See id. (citing Burgett v.

8
Texas, 389 U.S. 109, 115, 88 S. Ct. 258, 262, 19 L.Ed.2d 319

(1967)). 3 Applying this principle, the Virginia Supreme Court

has held that a defendant's prior misdemeanor conviction that was

"uncounseled" and for which he served two days in jail was

inadmissible during both the guilt and sentencing phases of his

trial on the charge of driving under the influence of intoxicants

("DUI"), a second conviction within five to ten years of a first

DUI conviction. See Griswold, 252 Va. at 116, 472 S.E.2d at

790-91.
When sentence enhancement is an issue, the Commonwealth has

the burden of proving the existence of a defendant's prior, valid

convictions, and it is assisted with this burden by the

"presumption of regularity." Because every final judgment of a

court of competent jurisdiction is presumed "to have been rightly

done," a "final" criminal conviction is entitled to a

"presumption of regularity" when challenged collaterally, even on

the ground that it was constitutionally invalid. See Nicely v.
Commonwealth, 25 Va. App. 579, 584-86, 587, 490 S.E.2d 281,

283-84, 284 (1997); see also James v. Commonwealth, 18 Va. App.

746, 750-51, 446 S.E.2d 900, 903 (1994) (citing Parke, 506 U.S.

3
A prior conviction obtained in violation of a defendant's
right to a knowing and intelligent waiver of his rights when
making a guilty plea also cannot be used to support guilt or
enhance punishment for another offense. See James v.
Commonwealth, 18 Va. App. 746, 750-51, 446 S.E.2d 900, 903
(1994); Parke, 506 U.S. at 27-29, 113 S. Ct. at 522-23
(construing Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23
L.Ed.2d 274 (1969)).

9
at 30, 113 S. Ct. at 523). Thus, if the Commonwealth offers

evidence sufficient to prove the existence of a defendant's prior

criminal conviction, a presumption arises that the prior

conviction was obtained in compliance with the defendant's right

to counsel under the Sixth Amendment. See Nicely, 25 Va. App. at

587, 490 S.E.2d at 284 (stating that "the record of a prior

misdemeanor conviction, silent with respect to related

incarceration or representation of the accused by counsel, is

entitled to a presumption of regularity on collateral

attack . . ." (emphasis added)). Unless the defendant rebuts

this presumption with evidence that the prior conviction is

constitutionally invalid, the prior conviction may be used for

sentence enhancement in the current proceeding. Requiring the

defendant to rebut the presumption of regularity does not violate

the Due Process Clause because, as the United States Supreme

Court has stated,
when a collateral attack on a final
conviction rests on constitutional grounds,
the presumption of regularity that attaches
to final judgments makes it appropriate to
assign a proof burden to the defendant.

Parke, 506 U.S. at 31, 113 S. Ct. at 524. 4

Appellant argues that James stands for the proposition that

the Commonwealth always retains both the burden of production and

4
In Parke, the United States Supreme Court held that "the Due
Process Clause permits a State to impose a burden of production
on a recidivism defendant who challenges the validity of a prior
conviction under Boykin." 506 U.S. at 34, 113 S. Ct. at 525-26.

10
persuasion on the issue of whether a defendant's prior conviction

was valid under the Sixth Amendment. Although the issue in James

did not involve a collateral challenge to a prior conviction

based upon the right to counsel secured by the Sixth Amendment,

we did, albeit by way of dictum, make the following statement:
The Commonwealth had the burden of going
forward with evidence and always retains the
burden of persuasion to prove that the
predicate convictions relied upon were valid
under [the Sixth Amendment's right to
counsel] . . . .
We hold that the Commonwealth satisfies
its burden of going forward when it produces
a properly certified conviction from a court
of competent jurisdiction which appears on
its face to be a valid final judgment,
provided that in all felony cases and those
misdemeanor proceedings where imprisonment
resulted, there is evidence establishing that
the defendant was represented by or properly
waived counsel in the earlier criminal
proceeding. Burgett v. Texas, 389 U.S. 109,
114, 88 S. Ct. 258, 261, 19 L.Ed.2d 319
(1967); Nichols, [511 U.S. at 746-47], 114
S. Ct. at 1927; Scott, 440 U.S. at 373, 99
S. Ct. at 1161.

18 Va. App. at 752, 446 S.E.2d at 904 (emphasis added). This

statement is correct, although perhaps incomplete. When the

Commonwealth seeks to prove that a defendant has a prior criminal

conviction, it bears the burden of producing evidence sufficient

to prove that such a conviction did, in fact, occur. Once the

Commonwealth establishes this fact, the presumption of regularity

that attaches to such convictions satisfies any burden the

Commonwealth had to prove that the conviction was obtained in

compliance with the defendant's right to counsel. This dictum in

11
James does not require the Commonwealth to offer additional

evidence that independently establishes that the prior conviction

was "counseled" as a prerequisite to the conviction's

admissibility. Instead, the Commonwealth is only required to

produce such additional evidence if the defendant first produces

evidence of his or her own that rebuts the presumption of

regularity. See Nicely, 25 Va. App. at 585, 490 S.E.2d at 283

(stating that "'[a] silent record or the mere naked assertion by

an accused' that his constitutional rights were violated is

'insufficient' to rebut the presumption of validity").
We hold that the trial court did not violate the Due Process

Clause when it admitted at the sentencing hearing for the heroin

offense the evidence of appellant's prior convictions. The

Commonwealth proved the existence of appellant's prior

convictions by offering the out-of-court statements of Anita G.

Sweetwyne, the probation and parole officer who prepared the

presentence report. Appellant did not contend that the summary

of his prior adult criminal record contained in the presentence

report was inaccurate or that the hearsay contained in the report

was inadmissible at the sentencing hearing. See Williams v. New

York, 337 U.S. 241, 250-51, 69 S. Ct. 1079, 1086, 93 L.Ed. 1337

(1949). On appeal, he does not contend that this evidence was

insufficient to prove the existence of his prior convictions.

The presentence report indicates that two of these prior

convictions were felonies and that one was a misdemeanor for

12
which appellant was actually incarcerated. Thus, appellant's

right to counsel under the Sixth Amendment attached to these

convictions. See Scott, 440 U.S. at 373-74, 99 S. Ct. at 1162;

Burgett, 389 U.S. at 114, 88 S. Ct. at 261 (citing Gideon v.

Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L.Ed.2d 799 (1963)).

When the Commonwealth offered evidence that proved the existence

of these convictions, a presumption arose that they were

constitutionally valid. Appellant offered no evidence to rebut

the presumption that these prior convictions were obtained in

compliance with his right to counsel under the Sixth Amendment.

Because appellant failed to rebut the presumption of regularity,

the trial court did not violate the Due Process Clause when it

admitted these prior convictions for the purpose of sentence

enhancement.
III.

ADMISSIBILITY OF PRIOR JUVENILE ADJUDICATIONS

Appellant contends the trial court violated the Due Process

Clause of the Fourteenth Amendment when it admitted evidence

during the sentencing hearing about his prior juvenile record.

He argues that the procedures attendant to juvenile proceedings

render these adjudications so unreliable that it is fundamentally

unfair to consider them during the sentencing phase of later

adult criminal prosecutions. We disagree.

Under Code § 19.2-299(A), a probation officer who has been

ordered to prepare a presentence report is required "to fully

13
advise the court" of "the history of the accused, including a

report of the accused's criminal record as an adult and available

juvenile records, and all other relevant facts." (Emphasis

added); see Thomas v. Commonwealth, 18 Va. App. 656, 659, 446

S.E.2d 469, 471 (1994) (en banc). The trial court, in turn, is

required to read and consider the content of the presentence

report when "determin[ing] the appropriate sentence to be

imposed." Code § 19.2-299(A); cf. Duncan v. Commonwealth, 2 Va.

App. 342, 345-46, 343 S.E.2d 392, 394 (1986) (stating that "[a]

defendant convicted of a felony has an absolute right to have a

presentence investigation and report prepared upon his request

and submitted to the court prior to the pronouncement of

sentence").
We hold that the trial court did not violate appellant's

right to due process when it admitted into evidence at the

sentencing hearing the summary of his juvenile record contained

in the presentence report. The process of determining a

convicted defendant's sentence is, in a constitutional sense,

"less exacting than the process of establishing guilt." Nichols,

511 U.S. at 747, 114 S. Ct. at 1927.
[O]nce the guilt of the accused has been
properly established, the sentencing judge,
in determining the kind and extent of
punishment to be imposed, is not restricted
to evidence derived from the examination and
cross-examination of witnesses in open court
but may, consistently with the Due Process
Clause of the Fourteenth Amendment, consider
responsible unsworn or "out-of-court"
information relative to the circumstances of
the crime and to the convicted person's life

14
 and characteristics.

Williams v. Oklahoma, 358 U.S. 576, 584, 79 S. Ct. 421, 426, 3

L.Ed.2d 763 (1959). Evidence about the convicted defendant's

"life and characteristics" that is constitutionally admissible

during a sentencing hearing includes evidence regarding the

defendant's prior criminal conduct, whether adjudicated or

unadjudicated. See Nichols, 511 U.S. at 747, 114 S. Ct. at 1928.

Because the evidentiary restrictions imposed by the Due Process

Clause upon sentencing hearings are significantly relaxed, we

conclude that the trial court did not err when it admitted into

evidence the summary of appellant's juvenile record.
Appellant argues that admitting prior juvenile adjudications

at a sentencing hearing is fundamentally unfair because they are

not as "reliable" as adult criminal convictions. We disagree.

Criminal convictions do not set the standard for determining the

admissibility at a sentencing hearing of information regarding a

convicted defendant's prior criminal conduct. Cf. Williams v.
New York, 337 U.S. at 244, 250-51, 69 S. Ct. at 1081, 1086

(holding that the Due Process Clause did not prohibit the trial

court from considering hearsay contained in a presentence report

that appellant committed thirty unadjudicated burglaries); Walker

v. Commonwealth, 19 Va. App. 768, 774, 454 S.E.2d 737, 741

(1995). Instead, under the Due Process Clause, the prior

criminal conduct of a convicted defendant may be established by

evidence offered at a sentencing hearing, and "the state need

15
prove such conduct only by a preponderance of the evidence."

Nichols, 511 U.S. at 748, 114 S. Ct. at 1928. Thus, the mere

fact that a juvenile adjudication is not a criminal conviction

does not bar its admission into evidence at a sentencing hearing.

Moreover, an adjudication that a juvenile has committed a

criminal offense is arguably more reliable than hearsay evidence

regarding unadjudicated criminal conduct because it is determined

pursuant to the due process protections that are applicable to

juvenile proceedings, which include the
5
"beyond-a-reasonable-doubt" standard of proof.
IV.
ADMISSIBILITY OF PROSECUTOR'S PROFFER REGARDING

THE EVIDENCE ADMITTED AT APPELLANT'S MURDER TRIAL

Appellant contends the trial court violated the Due Process

Clause of the Fourteenth Amendment when it considered the

Commonwealth's attorney's proffer regarding the evidence at the

murder trial to be "admissible testimony" at the sentencing

hearing. He argues that the Commonwealth's attorney's summary of
the testimony against him at the murder trial was not

5
Under the Fourteenth Amendment, a juvenile subjected to the
juvenile process has a right to notice of the charges against him
or her, a right to counsel, a privilege against
self-incrimination, and a right to confrontation and
cross-examination. See In re Gault, 387 U.S. 1, 31-57, 87 S. Ct.
1428, 1445-59, 18 L.Ed.2d 527 (1967). In addition, as in
prosecutions against adults, the charges against a juvenile must
be established "by proof beyond a reasonable doubt." In re
Winship, 397 U.S. 358, 368, 90 S. Ct. 1068, 1075, 25 L.Ed.2d 368
(1970).

16
sufficiently reliable to be considered "evidence" that he

committed the murder because he was denied the opportunity to

confront and cross-examine those witnesses during the sentencing

hearing. We disagree.

We hold that the trial court did not violate the Due Process

Clause of the Fourteenth Amendment when it admitted into evidence

at the sentencing hearing the proffer by the Commonwealth's

attorney regarding the evidence presented at the trial on the

unrelated murder charge. Consistent with due process, a

sentencing court "is not restricted to evidence derived from the

examination and cross-examination of witnesses in open court" and

is permitted to consider "responsible unsworn or 'out-of-court'

information relative to the circumstances of the crime and to the

convicted person's life and characteristics." Williams v.

Oklahoma, 358 U.S. at 584, 79 S. Ct. at 426 (emphasis added). As

previously stated, the mere fact that appellant was not convicted

of the murder charge did not constitutionally bar the trial court

from considering it when determining appellant's sentence for the

heroin offense. Moreover, the Commonwealth's attorney's proffer

concerned only the evidence admitted at the trial on the murder
charge. Although appellant argued that the witnesses at this

trial were not credible, he did not disagree with the

Commonwealth's attorney's representations regarding the substance

of their testimony and the other evidence at the trial. As such,

we cannot say the trial court violated the Due Process Clause

17
when it chose to rely upon the Commonwealth's attorney's

"responsible unsworn" proffer regarding this evidence. See id.

at 583-84, 79 S. Ct. at 426 (holding that the prosecuting

attorney's statement of the details of the crime and of the

defendant's criminal record at a sentencing hearing following a

guilty plea did not "deprive [the defendant] of fundamental

fairness or of any right of confrontation or cross-examination"

(emphasis added)).
For the foregoing reasons, we affirm the sentence imposed by

the trial court following the conviction of possession of heroin

with intent to distribute.

Affirmed.

18